Author: TNTP LAW

Legal Solutions for Contractors When Investors Delay Payments

Written by TNTP LAW on 31 January, 2025. Posted in Debt Collection, Dispute Settlement, Legal newsletter.

In the previous article, TNTP explored the topic: “Methods Used by Investors to Delay Debt Payments”. The article outlined common strategies being used by investors to prolong payment timelines. Building on this theme, TNTP explores the motives behind investors’ payment delays and provides practical solutions for contractors facing such challenges.

1. Rationale Behind Payment Delays by Investors

Investors may resort to delaying payments for several strategic or financial reasons. These may include optimizing cash flow to alleviate financial pressures, especially during periods of economic hardship or liquidity shortages. In certain cases, investors might intentionally defer payments to redirect resources toward other projects, particularly those with higher projected returns. Ultimately, the investor’s objective in delaying payments is to protect or enhance their financial standing. However, such actions often result in significant disruptions and financial strain for contractors, impacting project timelines and overall cooperation.

2. Legal and Practical Measures for Contractors

• Enforce Strict Monitoring to Ensure Project Progress and Quality

From the commencement of the project, contractors should implement robust oversight mechanisms to ensure that all aspects of the work meet contractual standards for quality, progress, and aesthetics. By adhering to agreed-upon standards and timelines, contractors can mitigate risks of disputes over performance that might otherwise be used by investors as grounds for delaying payments. This proactive approach also minimizes future repair work and protects against potential justifications for payment deferment.

• Negotiate Partial Acceptance and Staggered Payments

In cases where delays stem from genuine financial constraints, contractors may negotiate with investors to agree on partial acceptance of completed portions of the work or segmented payments for specific deliverables. This strategy reduces the financial burden on both parties, preserves the cooperative relationship, and establishes a framework for continued negotiation. Furthermore, partial acceptance enables better progress tracking, ensuring issues are addressed promptly, and thereby maintaining operational momentum.

• Exercise the Right to Suspend Performance

Contractors may invoke their right to suspend performance as a measure to address prolonged payment deferment, provided such a right is explicitly stipulated in the contract. Suspension of work can alleviate the financial strain on the contractor while applying necessary pressure on the investor to fulfill their payment obligations. However, contractors must comply with all procedural requirements for notice and act prudently to avoid unnecessary disruption to the project. Such action should be taken with due regard for preserving the contractor’s reputation and fostering long-term business relationships.

• Initiate Legal Action through Arbitration or Courts

Where all other remedies have been exhausted, contractors may resort to formal dispute resolution mechanisms such as arbitration or litigation. Commercial arbitration or competent courts can issue binding awards or decisions or judgments, compelling investors to satisfy their payment obligations. However, such proceedings can be time-consuming and resource-intensive. Engaging experienced legal counsel is strongly advised at this stage. Legal experts can ensure procedural compliance, optimize case strategy, and achieve favorable outcomes while allowing contractors to concentrate on their core operations. Moreover, the early involvement of legal professionals during contract drafting or pre-dispute negotiations can significantly mitigate risks, enhance the contractor’s bargaining position, and strengthen enforceability in future agreements.

By employing a combination of these measures, contractors can effectively address the challenges of delayed payments while strengthening their financial management and operational resilience. These strategies not only mitigate immediate risks but also establish a foundation for long-term sustainability, enhance the contractor’s industry reputation, and bolster their competitive edge in the market.

Common strategies used by investors to delay debt payments and solutions

Written by TNTP LAW on 29 January, 2025. Posted in Debt Collection, Legal newsletter.

Over the past years, the issue of investors “Withhold payments” from contractors has become staggeringly common. In many cases, contractors’ payments have been delayed for months or even over a decade without any proper acceptance. This issue became so severe that, in 2022, the leadership of VACC (Vietnam Association of Construction Contractors) and VCCI (Vietnam Chamber of Commerce and Industry) organized a seminar to address the challenges faced by enterprises. However, many contractors still struggle to find a way out of the overdue cycle imposed by investors. In light of this situation, TNTP, as a professional legal consultancy, presents the article: “Common strategies used by investors to delay debt payments and solutions.”

1. Common strategies used by investors to delay debt payments

• Delay the Acceptance of Work

One of the most frequently used strategies by investors is to deliberately delay or refuse acceptance of work due to various reasons, such as requesting adjustments, modifications, providing additional documents for acceptance or implementing unreasonable quality inspections and requiring contractors to make corrections.

Although most of construction tasks are governed by specific standards, investors often cite the lack of “aesthetic” as a reason to demand further corrections and refinements from contractors. This not only prolongs the payment timeline but also incurs additional costs and workforce requirements for contractors before they can submit the acceptance documents and request payment.

• Claiming Financial Difficulties

During contract negotiations, investors often make attractive promises regarding payment conditions. However, when contractors request payment, investors delay it, citing reasons such as cash flow issues or depleted funds. With such excuses, investors postpone payments for extended periods, promising to resolve the cash flow situation.

For projects funded by multiple sources or third-party financing, unstable cash flow can further enable investors to extend payment timeline, claiming delays in receiving funding or sponsorship, thereby complicating contractors’ ability to continue performing the work.

• Exploiting Ambiguous Contract Terms

Some contracts include vague or unclear provisions, making it difficult to determine specific timelines or conditions for investor payment obligations. This ambiguity gives investors the upper hand to justify short-term or long-term delays, or even to refuse payments for tasks that cannot be agreed upon.

Moreover, investors may demand documents or records not stipulated in the contract, creating additional obstacles for contractors in submitting payment requests and making the process more complex and prolonged.

• Failing to Provide Payment Guarantee

Payment guarantee is an effective mechanism used by contractors to minimize delays in payments. However, in most agreements, investors often hold the stronger negotiating position, forcing contractors to comply with the terms in their favor. In some cases, contractors are required to provide guarantees themselves to secure the contract.

On the other hand, while investors may agree to payment guarantees, they often propose guarantees at amounts significantly lower than the minimum required for project implementation. This ensures contractors remain engaged in the project but leaves a significant portion of funds at the investors’ disposal for other activities. In such situations, contractors may receive partial payments but face extended delays for the remaining amounts.

• Delaying Through Dispute Resolution

When all the above strategies have been used, investors may resort to prolonging payments by initiating dispute resolution through competent authorities.

In practice, the dispute resolution process in court can take several years from the initiation of a lawsuit to establishing a effective judgment. Even after a judgment is issued, if investors do not voluntarily comply, contractors must submit enforcement requests to competent enforcement agencies to recover the debt. Consequently, payments may be delayed for many years, causing significant losses to contractors.

2. Consequences of Payment Delays

• Affecting Contractors’ Cash Flow

Not all contractors have large financial resources like investors. Maintaining consistent cash flow is crucial for contractors to continue other projects. Interruptions in cash flow can result in wage arrears for workers, shortages of materials, delayed insurance payments, and loan defaults, directly affecting contractors’ business operations.

• Reduced Quality and Project Delays

Payment delays also impact projects directly, as contractors may lack the sufficient workforce or materials to meet deadlines. For instance, some phases like foundation pouring or applying protective coating, if not being performed continuously, will not only delay the progress but also compromise the structural integrity and aesthetic quality of the project. This creates challenges for contractors during both construction and acceptance stages.

• Increased Costs and Legal Risks

Most contractors in Vietnam are small and medium enterprises. To recover outstanding debts, contractors often resort to borrowing funds to maintain operations or finance other projects. Additionally, contractors may incur significant legal expenses to hire lawyers or advisors to recover the debt in disputes with investors.

• Damage to Reputation and Business Relationships

Disputes over unpaid debts often strain relationships between investors and contractors, making future cooperation difficult. Furthermore, such disputes create opportunities for competitors to exploit the situation and slander the contractor. In fact, these issues have tarnished the reputation of contractors in particular and the construction industry in general.

3. Measures to Mitigate Risks

• Drafting Clear and Comprehensive Contracts

Contractors should carefully review and request modifications to ensure contracts are clear and comprehensive, particularly regarding provisions on product standards, construction timelines, advances, guarantees, acceptance, and dispute resolution. For a better protection, contractors may seek assistance from legal advisors or consultants. Where contractors feel uncertain about potential risks, Lawyers and Law Firms can be one of the best choice for contractors to rely on.

• Implementing Payment Guarantees

Contractors can require investors to provide payment guarantees from banks or financial institutions to secure funds. It is crucial to establish clear terms and conditions for invoking the guarantee, ensuring contractors’ rights are protected and risks minimized.

• Adopting Progress-Based Payment Methods

Progress-based payments or task-based payments are among the most effective methods. This ensures contractors maintain stable cash flow, while investors can manage funds for multiple works, benefiting both parties.

• Monitoring and Recording Project Progress

In addition to oversight by third-party supervisors, contractors should actively monitor and document project progress. This facilitates acceptance procedures and provides evidence in disputes to demonstrate timely and quality completion of work.

Payment issues in business cooperation is always a challenge, especially in debt settlements. To protect their rights and interests, contractors must implement as many preventive measures as possible. In the second part of this topic, TNTP will delve deeper into the underlying causes of investors’ payment delays and propose solutions to help contractors navigate these challenges effectively.

Applying measures to seize disputed property during the resolution process at the Court

Written by TNTP LAW on 27 January, 2025. Posted in Debt Collection, Legal newsletter.

The seizure of disputed property is one of the critical provisional emergency measures stipulated in Vietnam’s civil procedure law. This measure is implemented to prevent obligated parties from dissipating property or evading their obligations. In this article, TNTP will present several contents about applying measures to seize disputed property during dispute resolution in Court.

1. Seizure of disputed property

The measure of seizing disputed property is implemented to thoroughly inventory and analyze the assets involved in a case. This ensures a clear understanding of the property and prevents its transfer, dissipation, or destruction. It is applied when there is evidence that the party in possession of the property is attempting to avoid obligations by engaging in activities such as creating fake transactions, destroying the property, or taking actions that reduce its value.
The seized properties can be either movable estate or real estate. If the seized property is the movable estate, it may be confiscated and stored in the enforcement agency’s warehouse or entrusted to a third party for safekeeping until a Court decision is issued. For real estate, the property may be handed over to the litigants or a third party for management until the Court issues a decision.

2. Conditions for application

2.1 A request from the litigant or their representative

Similar to other provisional emergency measures, disputed property seizure is only applied upon the request of the litigant. This is practical because only the litigant is aware of the risks and can provide sufficient evidence to justify the necessity of seizing disputed properties to protect their legal rights and interests. Additionally, the Court’s decision to apply the measure based on the litigant’s request ensures that it is implemented objectively, fairly, and appropriately, avoiding unnecessary interventions that could harm the essential rights of the applied party.

2.2 The properties must be disputed property

This measure is not applied to all the properties of the litigant in a civil case but is limited to the properties involved in the dispute. Thus, the measure does not affect the entirety of the obligated party’s properties but only prevents the transfer, dissipation, or destruction of disputed properties within the case.

2.3 Evidence of asset dissipation or destruction is required

According to Clause 1, Article 120 of the 2015 Civil Procedure Code, this measure can only be applied when “there is evidence that the person holding the property is dissipating or destroying the disputed property”. Therefore, the Court may only decide to apply this measure when there is verified evidence that the person holding the disputed property has engaged in acts of dissipation or destruction of the disputed property. For example, the litigant provides photographs or videos recording the act of the property holder damaging the disputed property.

2.4 The requesting party must provide a security equivalent

To ensure that the petitioner held responsibility for their proposal and to minimize risks from this measure, the law requires the petitioner to fulfil a security measure equivalent to the value of the seized property unless the Court exempts this requirement.

3. In cases where the court does not apply the measure

Based on Clause 4, Article 4 of Resolution 02/2020/NQ-HDTP guiding the application of certain provisions on provisional emergency measures under the Civil Procedure Code, this measure is not applicable in the following cases:
– Property prohibited from circulation;
– Property serving the national defense, security, or public interest;
– Property meeting essential personal living needs, customary religious items, or necessary tools used for essential livelihood activities of the person subject to seizure;
– Property of businesses, cooperatives, or production, business, and service facilities used for healthcare, worker meals, or other essential services;
– Equipment, means, and property not used for business purposes by preschools, schools, and healthcare facilities;
– Equipment, means, and tools ensuring labour safety, fire prevention, environmental protection, etc.
This article by TNTP outlines the topic of “Applying measures to seize disputed property during the resolution process at the Court”. We hope it is helpful to our readers.
Best regards,

Tet holiday announcement 2025

Written by TNTP LAW on 24 January, 2025. Posted in Hoạt động của TNTP.

Dear Clients and Partners,

TNTP International Law Firm LLC would like to extend our heartfelt gratitude to our esteemed Clients and Partners for your trust, collaboration, and support throughout the past year. Your invaluable partnership has been a driving force for our continuous efforts and development.
On the occasion of the Lunar New Year of 2025, we are pleased to announce our holiday schedule as follows:
• Holiday period: From Saturday, January 25, 2025, to the end of Sunday, February 2, 2025
• Work resumes: Monday, February 3, 2025
During the holiday, for urgent support, please feel free to contact us via:
• Email: ha.nguyen@tntplaw.com
• Hotline: +84 931 798 818
As we step into 2025, TNTP remains committed to standing alongside our Clients and Partners on your legal journey, providing effective, secure, and professional solutions.
On this occasion of the Lunar New Year, TNTP wishes our Clients and Partners:
✨ A New Year filled with Happiness, Peace, Success, and Prosperity! ✨
We hope that 2025 will mark significant progress in the partnership between TNTP and our valued Clients and Partners.
Sincerely,

Hậu quả pháp lý của hợp đồng vô hiệu: Không làm phát sinh, thay đổi, chấm dứt quyền và nghĩa vụ của các bên kể từ thời điểm giao kết hợp đồng

Written by TNTP LAW on 24 January, 2025. Posted in Kiến Thức Pháp Luật.

Trong khuôn khổ pháp lý, hợp đồng vô hiệu được xem là một vấn đề quan trọng trong luật hợp đồng. Khi một hợp đồng bị tuyên bố vô hiệu, nó không tạo ra bất kỳ hiệu lực pháp lý nào từ thời điểm ký kết, đồng nghĩa với việc không làm phát sinh, thay đổi hay chấm dứt bất kỳ quyền hoặc nghĩa vụ nào của các bên liên quan. Để hiểu rõ hơn về vấn đề này, bài viết dưới đây sẽ đi sâu phân tích các khía cạnh pháp lý của hợp đồng vô hiệu, bao gồm thời điểm xác định hợp đồng vô hiệu, hiệu lực của quyền và nghĩa vụ của các bên trước và sau khi hợp đồng được tuyên bố vô hiệu và giá trị pháp lý của các thỏa thuận khi hợp đồng bị tuyên vô hiệu.

1. Thời điểm xác định hợp đồng vô hiệu

Khi hợp đồng bị tuyên bố vô hiệu thì hợp đồng không có hiệu lực kể từ thời điểm hợp đồng được xác lập. Điều này được hiểu rằng, thời điểm Tòa án tuyên bố hợp đồng vô hiệu chỉ mang tính chất xác nhận rằng hợp đồng không có giá trị pháp lý. Tuy nhiên, trên thực tế, hợp đồng đã bị vô hiệu ngay từ thời điểm giao kết do không đáp ứng các điều kiện theo quy định của pháp luật, dẫn đến việc không thể phát sinh hiệu lực từ thời điểm giao kết hợp đồng.

2. Hiệu lực của quyền và nghĩa vụ của các bên

(i) Quyền và nghĩa vụ của các bên sau thời điểm giao kết hợp đồng và trước thời điểm hợp đồng vô hiệu

Các quyền và nghĩa vụ mà các bên đã thực hiện trong giai đoạn này đều không phát sinh hiệu lực. Theo đó, các bên phải khôi phục lại tình trạng ban đầu và hoàn trả cho nhau những gì đã nhận theo quy định của pháp luật.

(ii) Quyền và nghĩa vụ của các bên sau thời điểm hợp đồng vô hiệu

Sau thời điểm hợp đồng vô hiệu, các quyền và nghĩa vụ của các bên theo hợp đồng sẽ không phát sinh hiệu lực. Theo đó, các bên sẽ không có nghĩa vụ phải thực hiện các nghĩa vụ theo hợp đồng và bên có quyền cũng không được hưởng các quyền sau thời điểm hợp đồng bị tuyên vô hiệu.

3. Hiệu lực của quyền và nghĩa vụ theo thỏa thuận của các bên khi hợp đồng vô hiệu

Vấn đề này đặt ra khi trên thực tế, các bên có thể thỏa thuận với nhau về việc tiếp tục thực hiện một số quyền và nghĩa vụ mặc dù hợp đồng vô hiệu. Vậy câu hỏi đặt ra là, các thỏa thuận này có hiệu lực trong trường hợp hợp đồng vô hiệu hay không.

Hiện nay, việc cơ quan giải quyết tranh chấp giải quyết hậu quả của hợp đồng bị tuyên vô hiệu có thể chưa được triệt để bởi các bên đã thực hiện hợp đồng đến thời điểm hợp đồng bị vô hiệu. Theo đó, trong một số trường hợp, việc khôi phục lại tình trạng ban đầu là không thể thực hiện được. Do đó, các bên có thể có tranh chấp với nhau về việc bồi thường thiệt hại đối với việc không thể khôi phục lại tình trạng ban đầu. Một trường hợp nữa có thể xảy ra là một trong các bên có thể vi phạm hợp đồng, và sau thời điểm hợp đồng bị tuyên vô hiệu, một trong các bên mới phát hiện ra và yêu cầu áp dụng các biện pháp về phạt vi phạm hoặc bồi thường thiệt hại.

Tuy nhiên, theo quy định của Bộ luật Dân sự 2015 và Luật Thương mại 2005, không có quy định nào giải quyết các vấn đề về giá trị pháp lý của các thỏa thuận đối với các quyền và nghĩa vụ trong trường hợp hợp đồng vô hiệu. Do đó, giá trị pháp lý của các thỏa thuận về phạt vi phạm, bồi thường thiệt hại, giải quyết tranh chấp và các điều khoản khác không được xác định rõ trong trường hợp hợp đồng vô hiệu.

Trong trường hợp hợp đồng có điều khoản giải quyết tranh chấp tại trọng tài, theo quy định của pháp luật về trọng tài, điều khoản thỏa thuận trọng tài trong hợp đồng độc lập với hợp đồng. Việc hợp đồng vô hiệu không làm mất đi hiệu lực của thỏa thuận trọng tài. Do đó, có thể lý luận là trừ khi chính bản thân thỏa thuận trọng tài bị tuyên bố vô hiệu, việc hợp đồng bị tuyên bố vô hiệu cũng không làm mất hiệu lực của thỏa thuận trọng tài. Trong trường hợp điều khoản trọng tài tiếp tục có hiệu lực, trọng tài nên xem xét áp dụng các điều khoản được các bên thỏa thuận tiếp tục có hiệu lực khi hợp đồng vô hiệu để xử lý vi phạm phát sinh từ hợp đồng.

Có thể thấy rằng, trong trường hợp hợp đồng bị tuyên vô hiệu, các bên cần cân nhắc về việc thực hiện hoặc tiếp tục các thỏa thuận liên quan. Bên cạnh đó, để đảm bảo quyền và lợi ích hợp pháp, các bên có thể nhờ đến sự hỗ trợ từ cơ quan giải quyết tranh chấp để xử lý các vấn đề phát sinh. Điều này không chỉ đảm bảo công bằng trong việc thực thi pháp luật mà còn giúp giảm thiểu những rủi ro và tranh chấp giữa các bên. Đồng thời, cần có sự hoàn thiện trong các quy định pháp luật để làm rõ hơn giá trị pháp lý của các thỏa thuận giữa các bên khi hợp đồng vô hiệu nhằm bảo vệ lợi ích chính đáng của các bên liên quan một cách hiệu quả và minh bạch hơn.

Trên đây là bài viết “Hậu quả pháp lý của hợp đồng vô hiệu: Không làm phát sinh, thay đổi, chấm dứt quyền và nghĩa vụ của các bên kể từ thời điểm giao kết hợp đồng” mà TNTP gửi đến Quý độc giả. TNTP hi vọng bài viết này giúp ích cho Quý độc giả.

Trân trọng,

Legal consequences of an invalid contract: The contract does not give rise to, change, or terminate any civil rights and obligations of the parties from the time the contract is entered into

Written by TNTP LAW on 24 January, 2025. Posted in Legal newsletter.

Within the legal framework, the invalidity of a contract is considered a significant issue in contract law. When a contract is declared invalid, it has no legal force from its execution, meaning it does not confer, alter, or extinguish any rights or obligations of the parties involved. This article will explore the legal facets of an invalid contract, including the determination of invalidity, the effects on the rights and obligations of the parties before and after the declaration of invalidity, and the legal validity of agreements when a contract is declared invalid.

1. Timing of determining a contract invalid

A contract is considered invalid from the moment it is executed if it fails to meet the requisite legal conditions, rendering it ineffective from the outset. The court’s declaration of a contract as invalid is a formal acknowledgement that it lacks legal validity from its execution.

2. Effectiveness of the rights and obligations of the parties

(i) Rights and Obligations of the Parties After Contract Execution and Before Its Declaration as Invalid

Any rights and obligations executed by the parties during this period are not legally effective. Accordingly, the parties are required to revert to the original state and reciprocate any benefits received as mandated by law.

(ii) Rights and Obligations of the Parties After the Declaration of the Contract as Invalid

Post-declaration, the rights and obligations stipulated by the contract do not take effect. Thus, the parties are not bound to fulfil any contractual duties, nor is the beneficiary party entitled to any contractual rights post-invalidity.

3. Legal validity of agreements when a contract is declared invalid

This issue arises when parties, in practice, may agree to continue some contractual rights and obligations despite the contract’s invalidity. The critical question is whether such agreements remain legally binding in the event of the contract’s invalidity.

Presently, the resolution of disputes concerning invalid contracts may not be comprehensive, as the parties may have executed the contract from its inception to its invalidation. In some cases, returning to the pre-contractual state may be impractical. Thus, disputes may arise regarding compensation for the inability to revert to the original state. Furthermore, a party may breach the contract, and only after the contract’s invalidation does the breach come to light, prompting requests for penalties or damages.

According to the 2015 Civil Code and the 2005 Commercial Law, there are no provisions addressing the legal validity of agreements concerning rights and obligations when a contract is declared invalid. Therefore, the legal status of agreements on penalties, damages, dispute resolution, and other clauses is indeterminate in cases of invalid contracts.

Regarding contracts with arbitration clauses, under arbitration law, an arbitration agreement within a contract is independent of the contract’s validity. Thus, the invalidity of the contract does not impact the effectiveness of the arbitration agreement. Unless the arbitration agreement itself is declared invalid, the contract’s invalidity does not invalidate the arbitration agreement. If the arbitration clause remains valid, arbitration should consider enforcing the terms that the parties have agreed to continue under the invalid contract to address breaches originating from the contract.

It is clear that in instances of contract invalidity, parties must thoroughly assess the execution or continuation of related agreements. Moreover, to safeguard legal rights and interests, parties may seek assistance from dispute resolution bodies to address emerging issues. This ensures fairness in law enforcement and reduces potential risks and disputes between parties. Additionally, legal regulations need to be refined to more clearly define the legal status of agreements between parties in cases of contract invalidity, thus protecting the legitimate interests of the involved parties more effectively and transparently.

This article, “Legal consequences of an invalid contract: The contract does not give rise to, change, or terminate any civil rights and obligations of the parties from the time the contract is entered into” is presented to our readers by TNTP. We hope it proves informative.

Sincerely,

TNTP Congratulates Lawyer Nguyen Thi Thu Hang and Lawyer Do Le Minh for becoming Lawyer

Written by TNTP LAW on 23 January, 2025. Posted in Our Activities.

Branch of TNTP & Associates International Law Company Limited (“TNTP“) would like to congratulate the new Lawyer Nguyen Thi Thu Hang and the new Lawyer Do Le Minh for successfully passing the examination at the end of the legal practice probationary process to officially become a Lawyer of the Hanoi Bar Association.

Lawyer Nguyen Thi Thu Hang and Lawyer Do Le Minh are employees of TNTP, who have been with the company for more than half a decade, becoming an indispensable part of the development of TNTP. Along with the dedicated and experienced guidance of Lawyer Nguyen Thanh Ha – Head of TNTP, both of them have constantly learned, improved their professional knowledge and honed their professional experience skills to achieve the results they have today.

Lawyer Do Le Minh and Lawyer Nguyen Thi Thu Hang are the generation of lawyers “made by TNTP” who affirm the prestige and capacity of TNTP in the process of training and improving the quality of the staff.

Once again, TNTP would like to congratulate the new Lawyer Nguyen Thi Thu Hang and the new Lawyer Do Le Minh in their new and responsible positions. We wish you two continued to achieve many successes and make positive contributions to the development of TNTP in particular and the legal field in general.

Best regards.

Learn more about Lawyer Nguyen Thi Thu Hang and Lawyer Do Le Minh

LAWYER NGUYEN THANH HA – BRANCH MANAGER OF TNTP INTERNATIONAL LAW FIRM & TNTP ASSOCIATES – WAS ELECTED TO THE EXECUTIVE COMMITTEE OF THE VIETNAM ASSOCIATION OF REAL ESTATE BROKERS (VARS)

Written by TNTP LAW on 22 January, 2025. Posted in Hoạt động của TNTP.

TNTP & Associates International Law Firm (“TNTP”) would like to congratulate Lawyer Nguyen Thanh Ha, Head of TNTP Branch, on his excellent election to the Executive Committee of the Vietnam Association of Real Estate Brokers (VARS) for the second term (2021-2026). This is an important milestone, not only recognizes the relentless dedication of Lawyer Thanh Ha but also affirms the prestige and outstanding capacity of Lawyer Nguyen Thanh Ha in the field of real estate law and consulting.
The Vietnam Association of Real Estate Brokers (VARS) is a leading professional organization, playing an important role in connecting experts, organizations, businesses and individuals in the real estate brokerage industry in Vietnam. The Vietnam Association of Real Estate Brokers is affiliated to the Vietnam Real Estate Association, is organized and operates on the principle of voluntariness, complying with the laws of the State, the Law on Associations, the Charter of the Vietnam Real Estate Association and the Association’s Operation Regulations.
With the mission of promoting professionalization and sustainable development, VARS has been building a strong community where members are not only protected but also accompanied on the journey to improve their professional capacity and actively contribute to transparency. of the real estate market.
Lawyer Thanh Ha’s election to the Executive Committee of VARS is not only a recognition of his capacity and prestige in the legal field but also opens a new chapter in the journey of accompanying and developing with the Vietnamese real estate community. With extensive experience in the legal field and a deep understanding of the real estate brokerage industry, Lawyer Thanh Ha is committed to bringing practical contributions to VARS, in building a transparent and effective legal framework, improving service quality and accompanying VARS in building a long-term development strategy.
Once again, TNTP would like to congratulate Lawyer Thanh Ha on this new position full of responsibility. I wish you success and continue to make outstanding marks in the journey of accompanying and developing with VARS.
Respect.

Legal regulations on occupational safety in the construction industry

Written by TNTP LAW on 22 January, 2025. Posted in Legal newsletter.

Occupational safety in the construction industry has always been a concern under Vietnamese law. Due to the inherent risks of accidents in this sector, legal regulations regarding occupational safety play a vital role in safeguarding workers’ health and lives, as well as ensuring the progress of construction projects meet the timeline. This article explores the key legal regulations on occupational safety for entities involved in the construction industry.

1. What is occupational safety in the construction industry?

According to Clause 2, Article 3 of the Occupational Safety and Hygiene Law 2015 and Clause 20, Article 2 of Decree 06/2021/ND-CP, occupational safety in the construction sector encompasses measures to prevent and control dangerous and harmful factors during the construction process. The aim is to protect the health and lives of workers and to prevent incidents that may compromise safety at construction sites.

2. Legal regulations on occupational safety in the construction industry

Current legal regulations have established specific responsibilities for each entity involved in construction activities, from contractors and investors to employees.

a. For construction contractors

Construction contractors are the entities directly responsible for organizing, managing, and carrying out tasks at the construction site. Therefore, based on the provisions of Article 13 of Decree 06/2021/ND-CP, the contractor’s responsibilities for ensuring occupational safety are as follows:

• Developing an occupational safety plan: The contractor must develop a detailed occupational safety plan that suits the specific characteristics of the project. This plan must include risk prevention measures, controls for hazardous factors, and the arrangement of necessary personal protective equipment.

• Training and monitoring occupational safety: The person in charge of occupational safety at the contractor must be professionally trained and guide employees in identifying potential incidents, supervise the compliance with safety protocols, and address violations promptly.

• Safety inspections and monitoring: During construction, the contractor is responsible for regularly inspecting and monitoring safety measures on the site, promptly detecting and handling dangerous situations.

• Providing protective equipment: The contractor must supply employees with the necessary personal protective equipment, such as helmets, safety harnesses, anti-slip shoes, and ensure that these items are always in good condition when working.

• Proper use of safety funds: The contractor must use safety funds for their intended purpose and ensure that measures to prevent accidents are carried out according to regulations.

• Reporting on occupational safety: The contractor is required to report safety-related issues as requested by the investor and maintain construction management records.

b. For Investors

Article 14 of Decree 06/2021/ND-CP outlines the responsibilities of investors, who play a comprehensive role in controlling and overseeing occupational safety at construction sites. Specifically:

• Managing occupational safety: The investor must establish a construction management system, notify the tasks and responsibilities of individuals within the system to the relevant contractors, and ensure adequate personnel are assigned to supervise construction and manage occupational safety during the construction process.

• Ensuring occupational safety in construction: The person in charge of managing occupational safety for the investor must be professionally trained in occupational safety or construction engineering and meet legal requirements for occupational safety.

• Monitoring occupational safety: The investor’s occupational safety manager is responsible for overseeing the implementation of occupational safety regulations by contractors during construction.

• Coordination between contractors: The investor must organize coordination between contractors to manage occupational safety and address any safety issues arising during the construction process.

• Suspending or halting construction: The investor has the right to suspend or halt construction if any violations of occupational safety regulations are found during the construction process.

The investor not only plays a supervisory role but also must proactively coordinate with contractors to create a safe working environment.

c. For Employees

In addition to contractors and investors, according to Article 15 of Decree 06/2021/ND-CP, employees, as those directly involved in construction, also have significant responsibilities in protecting themselves and their colleagues:

• Complying with Occupational Safety Regulations: Employees must fulfill their responsibilities in accordance with legal provisions on occupational safety and hygiene.

• Reporting Safety Hazards: Employees are responsible for reporting to the relevant authorities when they detect risks that may compromise occupational safety during the construction process.

• Refusing Unsafe Work: Employees have the right to refuse to perform tasks if they perceive that the work is unsafe or if they are not provided with the required personal protective equipment as specified.

• Performing Work After Training: Employees are only permitted to undertake tasks with strict occupational safety requirements after receiving proper training and being issued a safety card.

• Responding to and Addressing Accidents: Employees are responsible for participating in emergency response and addressing the consequences of workplace accidents and incidents that may compromise occupational safety.

3. Handling violations of occupational safety regulations in the construction industry

The law clearly stipulates the penalties for violations, including administrative fines and criminal prosecution in cases of severe consequences.

• According to Decree 12/2022/ND-CP, violations of occupational safety regulations may be subject to administrative fines ranging from 500,000 VND to 70,000,000 VND, depending on the severity and nature of the violation.

• In cases where the violation causes serious consequences, the act may be subject to criminal liability under Article 295 of the 2015 Penal Code (amended and supplemented in 2017). Specifically, violators may face:

– Monetary fine ranging from 20,000,000 VND to 100,000,000 VND.

– Non-custodial reform or imprisonment, with the term of imprisonment depending on the severity of the consequences caused.

Occupational safety in the construction industry is not only a legal responsibility but also a professional ethical duty of all parties involved. Strict adherence to legal regulations by the parties in construction not only protects the health and lives of workers but also contributes to improving the quality and efficiency of each project. It is hoped that with practical solutions and close cooperation among all parties, the working environment in the construction industry will become safer and more sustainable.

Above is the article “Legal regulations on occupational safety for entities in the construction industry” that TNTP has sent to our readers. TNTP hopes this article is helpful to you.

Best regards,

Jurisdiction to Resolve Sales Contract Disputes at Vietnamese Courts

Written by TNTP LAW on 20 January, 2025. Posted in Dispute Settlement, Legal newsletter.

The sale of goods is a common commercial activity aimed at transferring goods between two parties for profit. If disputes arise during the performance of the contract that the parties cannot negotiate themselves, they have the right to request the competent court to resolve the dispute. In such cases, the plaintiff needs to understand the regulations to initiate a lawsuit in the competent court. This article will provide readers with legal knowledge about the jurisdiction for resolving disputes in sales contracts between businesses in Vietnam’s People’s Courts.

1. What is a Sales Contract Dispute?

The sale of goods is a commercial activity involving the exchange of goods and money between the seller and the buyer. In this transaction, the seller delivers the goods, transfers ownership to the buyer and receives payment; the buyer pays the seller and receives the goods and ownership rights as agreed. When both the seller and purchaser wish to sell and purchase goods from each other, they will negotiate a contract that specifies each party’s rights and obligations.

A sales contract dispute refers to conflicts or disagreements between the parties during the performance of the sales contract, typically occurring when one party fails to fulfil their obligations, thereby affecting the legitimate rights and interests of the other party.

2. Jurisdiction for Resolving Sales Contract Disputes Between Businesses in the Court

When a dispute arises in a sales contract and the parties choose to resolve them in court, the competent court for resolving the dispute will be determined as follows:

2.1 Disputes Under the Jurisdiction of the Court

According to Article 30 of the Civil Procedure Code 2015, Vietnamese courts have jurisdiction to resolve disputes arising from business or commercial activities among organizations with business registration, which are all for profits. Therefore, when two businesses enter into a sales contract for profit, disputes arising from this relationship fall under the court’s jurisdiction.

2.2 First Instance Level People’s Court Jurisdiction

a. Disputes Under the Jurisdiction of District People’s Courts

At the first instance level, the district court will generally be the competent authority to resolve disputes over sales contracts between two businesses, except for disputes that fall under the jurisdiction of the People’s Courts of the province (explained below).

b. Disputes Under the Jurisdiction of Province People’s Courts

At the first instance stage, disputes typically fall under the jurisdiction of the provincial court in one of two scenarios: i) Disputes involving parties or assets located abroad or those requiring judicial assistance from Vietnam’s representative office abroad or a foreign court; ii) The provincial court may take up disputes to resolve on its initiative when deemed necessary or at the request of the district court.

2.3 Territorial jurisdiction of courts

According to Clause 1 of Article 39 and Clause 1 of Article 40 of the Civil Procedure Code 2015, the territorial jurisdiction for dispute resolution by the court is determined as follows:

● The court where the defendant’s headquarters is located;

● The parties have the right to agree in writing to petition the Courts where the plaintiff’s headquarters is located;

● The plaintiff has the right to choose the court to resolve sales contract disputes in the following cases:

– If the plaintiff does not know the location of the defendant’s headquarters, they may request the court where the head office of the defendant is last located or where the defendant’s properties are located to settle the dispute;

– If the dispute arises from the operation of a branch of an organization, the plaintiff may petition the Court where the organization’s head office is located or where its branch is located to settle it;

– If the defendant does not have a head office in Vietnam, the plaintiff may petition the Court where its office is located to settle the case;

– If the dispute arises from a contractual relation, the plaintiff may petition the Court where the contract is performed to settle the case;

– If the defendants are headquartered in different places, the plaintiff may petition the Court of the area where one of the defendants is headquartered to settle the case.

Thus, in most cases, the court where the defendant’s headquarters is located will have jurisdiction to settle the dispute. However, in general, civil law and commercial law always prioritize the agreement and wishes of the parties. Therefore, if the parties do not want the court where the defendant’s headquarters is located to resolve the dispute, they have the right to agree to choose the court where the plaintiff’s headquarters is located to resolve the dispute. Additionally, the plaintiff also has the right to choose the competent court to resolve the dispute in some of the aforementioned cases.

Above is the article “Jurisdiction to Resolve Sales Contract Disputes at Vietnamese Courts”. TNTP hopes that the article is helpful to readers.

Sincerely.